GUNASEKERA HAMINI v. DON BARON

077-NLR-NLR-V-05-GUNASEKERA-HAMINI-v.-DON-BARON.pdf


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OUNASEKERA HAMTNI ». DON BARON.
D. C., Colombo, 13.125.’
Donation bu a minor—Want of authority of guardian—Ratification aftermajority.
A donation by a minor nnassisted by a guardian is nnll and void.
On t-he death of the minor's father, the mother docs not become theguardian except by the Court appointing her under chapter 40 of theCivil Procedure Code.
Such a donation uannot be ratified subsequently, when the minorcomes of age.
A
CTION rei vindicatio, to recover one-fourth share of a landwhich the plaintiff alleged was originally the property of one
Don Lorenzo Appuhami and his wife Francina. On the death ofDon Lorenzo his widow became entitled to a half of the land, andhis two daughters, the first plaintiff and Juliana, to one-fourtheach. The first plaintiff, who was married to the second plaintiff,complained that the defendant was in unlawful possession of theentire land since September, 1890.
The defendant- pleaded that by a deed No. 7,031, dated 20thAugust-, 1890, the first plaintiff and her sister Juliana and theirmother Francina gifted the said land to him.
The plaintiffs replied that- the defendant, being the nephew andonly male relative of the deceased intestate, requested the firstplaintiff and her mother and sister to grant him a lease of the land
* nJ.2f.A«82iea/47)
1902.
February 10and 20, andMarch 1.
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1902. in question for a term of eight years, and on their agreeing to doFOr^ryM m jj6 ^ad the deed No. 7,031 prepared, which they believed to be
and 20f otid
March l. a lease and signed, but which they afterwards found was a gift inhis favour. They pleaded fraud and misrepresentation on hispart, and also that the first plaintiff was at the time of signing thedeed a minor, and that the said deed was void and of no effectin law.
The Acting District Judge (Mr. N. E. Cooke) found thatplaintiffs had failed to prove that the first plaintiff was induced tosign the deed by the false representation of the defendant that itwas a lease, and as regards the minority of the first defendant, theDistrict Jfudge held as follows: —
“ There is no doubt that she was a minor at the date she signedt-be deed. Her counsel contended that a deed by a minor is void.In support of his contention he quoted Maasdorp’s Grotius. pp. 38and 297, and Voet, bk. 4, tit.. 4, secs. 13 and 14. The passage onpage 38 of Grotius refers to wards and not to all minors, and as tothe passage on p. 297, it has not been shown that the Municipal Lawtherein referred to applies to this country. I interpret the law asstated by Voet to he that restitution in integrum is allowed to aminor on proof of damage sustained by him, but that in the. caseof a donation by him it is not necessary that damage should beproved. Whether the ltoman-Dutch Law is as,I have stated, or not,the Supreme Court has decided in D. C., Kegalla, No. 128, reportedin 2 C. L. R. 99. that a deed by a minor is not void but onlyvoidable by express repudiation by him after' attaining majority,'file first plaintiff was married on the 29th September, 1890. Shetook no steps to have the deed set asicle. Even this action wasnot instituted to. have the deed set aside. It was only when thedefendant pleaded it in. defence to the plaintiff’s action of eject-ment that she' has solight to have the deed set aside. It isconceded by the plaintiff’s counsel- that, if the deed is only voidableand not void, then the action is prescribed under sections 11 and15 of the Prescription Ordinance. I hold that the deed is not void.”
The plaintiffs appealed.
Walter Pereira, for plaintiffs, appellants.—There were two ques-tions raised in this case: first, whether the deed of the 20th August,1890, had been obtained on false and fraudulent representationsas to its nature; and. secondly whether the deed was void, so farat least as execution thereof by the first plaintiff was concerned,by reason of her minority at the time of execution. The first wasa question of fact. The District Judge bad decided it on theevidence against the appellants. It is needless to contest his
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finding thereon as the appellant had a strong case on the second 1902.
question. On this question, the District Judge failed to guide
himself by the Boman-Dutch Law. A minor’s deed was not March 1.
merely voidable but absolutely void under the Boman-Dutch
Law, especially if, as in the present case, it was a deed magjfestly
to the prejudice of the minor’s interests. The present deed
was a deed of gift, and Voet lays down (4, 4, 13) that in the
case'of such a deed the damage to the minor is apparent, and that
(4, 4, 52) such a deed is void. Grotius in his Introduction to Dutch
Jurisprudence, says (Maasdorp, p. 297) that a minor’s deed is
absolutely void, and Vander Keessel in his Commentary (Lor.
Trans., p. 34) repeats this proposition, and adds that it is not soconfirmed by an oath as to render it necessary to obtain restitutioin integrum against it. According to the Censura Forensis, 1, 9, 5,a son under the paternal power cannot, without the consent .ofthe father, either make a promise or bind himself by contract-, andin his Commentaries (Kotze's Trans., vol. I., p. 193) Van Leeuwenfurther says that a minor cannot alienate his own property.
Thomson, in bis Institutes, vol. II., p. 314, cites local casesshowing that contracts by a minor to his own prejudice are void.
He goes on to say that contracts by a minor which are neithercertainly to his prejudice, nor necessary and for his benefit, areneither void nor absolutely valid, but are voidable. The autho-rity he cites for this propositon is, however, one on English Law.
Any way. in a footnote he cites, with approval Marshall, who saysthat contracts entailing a certain loss and entered into duringminority are void. In the cases relied on by the District Judgeno authorities appeal- to have been cited in argument, and thedeeds involved' were not deeds of gift.
Counsel also cited Burge, vol. III., p. 178, and Ra.mana.than'sReports for 1863 to 1868, p■ 940.
Domhorst, for defendant, respondent.—The mother of the minorwas present at the execution of the present deed. Indeed, sheherself was a party to it, and there was nothing to prevent theminor from binding herself with the consent of the materfamilias. Muttiah Chetty v. de Silva, 1 N. L. R. 358. Theminor married a few days after the execution of the deed. Herhusband was a witness to the deed. He had thus knowledge ofits execution, but neither he nor his wife took any' steps to haveit cancelled. By long acquiescence they have practically ratifiedthe deed. One of the principal issues on the pleadings was leftuntouched in the Court below. The property really belonged tothe defendant. It bad been bought out of his money, although
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1902. the conveyance had been written in the name of the minor's^a^el‘- What the defendant submits is that by the deed in ques-Marck l. tion the first plaintiff, her mother, and sister, merely conveyed to“ the defendant what really was his own property. This mattershould have been adjudicated on in the Court below. Accordingto Voet, the remedy of restitutio in integrum was allowed in thecase of a minor's deed. That was unnecessary if the deed wasabsolutely void. Voet further speaks (4, 4, 44) of ratification of aminor’s acts after he has attained majority, which ratificationmay be express or gathered from acts and conduct.
Walter Pereira in reply.—The mere fact that restitution wasallowed in the case of a minor’s deed does not show that the.deedwas not by itself null and void. Restitution appears to havebeen allowed (Foef, 4, 1, 13) merely by way of greater securityagainst contracts and transactions which would Otherwise beipso jure considered null and void. Restitution was, however,not absolutely necessary in the case of a minor’s deed. VanLeeuwen distinctly says so. (Kotze’s Trans., vol. II., p. 345.)
Cur. adv. vult.
1st March, 1902, Wexdt, J.—
The plaintiffs, who are wife and husband, sought in thisaction, to vindicate from the defendant an undivided fourthshare of a parcel of land. The plaintiffs claimed it from oneLorenzo Appuhamy, the father of the first plaintiff, on the footingthat he had died intestate in 1890 possessed of the property andleaving him surviving his widow Francina and two daughters, thefirst plaintiff and her sister Juliana. The defendant claimed to bethe owner of the entire land by virtue of a deed of gift No. 7,031,dated 20th August, 1890, executed in his favour by the firstplaintiff and her mother and sister. The plaintiffs replied that thegift was void as against the first plaintiff, because she was at thedate of its execution a minor, and because the execution of it wasprocured by the fraudulent representation of the defendant (whowas a nephew of Lorenzo) that it was a deed of lease in his favourfor a term of eight years, the lease being intended to recoup thedefendant the expenses to be incurred in taking out letters ofadministration to Lorenzo’s estate.
At the trial it was agreed that the evidence recorded in aprevious action, No. 18,124, between the same parties and in respectof another parcel of land comprised in the deed of gift, should beread as evidence in the present action.
It appeared that a few days after Lorenzo’s death there was analmsgiving at his house, and on that occasion the deed of gift wasexecuted. The first plaintiff was the younger of the two sisters.,
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and was bom on the 27th March. 1H74. The attesting witnesses to 1902.the deed were the second plaintiff (who was subsequently, on tbo andgofawi29th September. 1890, married to the first plaintiff) and. one Baron March l.Perera, the brother of the widow Francina. The issues agreed to ^rBin>T> j_•bv counsel were as follows:(1) Whether the first plaintiff 'Helena
was induced to execute the deed No. 7,031, dated 20th August, 1890,by the false representation cf the defendant that it was a deed oflease ?(2) Is the deed No. 7.081 void by reason of the minority
of the first plaintiff ?(3) Whether the plaintiffs' claim to have
the deed No. 7,031 declared void is prescribed?
Upon these issues the District Judge found for the defendant.
He was satisfied that the first plaintiff knew what she wassigning when she executed the deed of gift. He was of opinionthat according to the law, as stated by Voet. a minor was entitledin the case of a donation to restitutio in inteyrum without anyproof of damage sustained; but whether that was the Roman-Dutch Law or not, he held that in Ceylon, on the authority ofSiriwardena v. Banda (2L. R. 99), the deed of a minor was not
void, but only voidable by express repudiation after attainingmajority. The first plaintiff attained majority by marriage onthe 29th September. 1890, blit took no steps to have the deed setaside, and the plaintiffs’ right of action to effect that object wastherefore now barred under section 11 of the Prescription Ordi-nance by the lapse of three years from the time the cause of actiouarose, the present actiou not having been brought until the 10thOctober, 1899.
The principal question argued before us was whether under thecircumstances the first plaintiff’s deed of donation was void oronly voidable.
In the case of Siriwardena o. Banda, the remarks of the Courtas to the minor’s deed being voidable only were obiter dicta, forBurnside. C.J., held that the title was not in the minor, but in hisfather’s administrator, who had conveyed to the defendant in thataction. The minor therefore had nothing to convey subsequentlyto the plaintiff. Withers, J., put his judgment on the groundthat the alleged minor was estopped by his conduct from denyingthe administrator’s title. -Moreover, the question now underconsideration does not appear from the report to have beenargued, nor were any of the authorities upon the point cited tothe Court. The decision is not therefore binding upon us in thepresent action.
The case of Sello Hamy r. Itapheal in I S. (’. It. 73. was citedto us at the argument by the defendant. Here, too, it wasgenerally stated that a conveyance by an infant was not void but
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1902.voidable, but -Clarence, J., points out that the defendant, who then
February 19 attacked the deed, had no locus standi to do so, because he in no*
Oftw Zvf (tfUm
March 1. sense represented the minor, and he expressly abstains fromWesot T. finding whether the grantor was or was not a minor, because sucha finding would have no bearing on the decision of the case.Besides, that was the case of a sale which might ov might not hebeneficial to the minor making .it. A donation certainly cannotpossibly be beneficial to the donor. There is no doubt on theauthorities that the first plaintiff could have obtained restitutio inintegrum, if she had applied in time, but that remedy is now barred,and she can only succeed by showing title to the land, whichdefendant’s nine years' possession would be insufficient to defeat-Did then the title continue all along in the first plaintiff onaccount of the nullity of her donation '?
Thomson, dealing with the contracts of minors, says (Inst.,7)ol. II., p. 314) “ that a minor, having in law no free will, cannot“ make a contract except for profit alone, so that a contract by a" minor to his own prejudice—as for. example the sale of his“ reversion (3 Lorenz, 146)—is void, but contracts which are neces-“ sarv, as for his food, &c. (which is to his profit), and which are“ to his benefit, as a contract for wages, &c., are valid. Contracts" which are neither certainly to his prejudice nor necessary aiid“for his benefit, are neither void nor absolutely valid, but are“ voidable; these he may by confirmation, or in some cases by“ mere acquiescence, after he becomes of age, render hirnself“liable to perform." In a footnote, he quotes the authority ofGrotius for making all contracts of an infant, except for profitalone, absolutely void.
Grotius (Introduction, bk. 3, chap. 1, i 26, Maasdorp's Trans.,p. 297) lays it down that Municipal Law (by which term hemeans the Jus civile—see p. 5) considers all obligations incurredby minors as invalid, except through delict or in so far as theyhave been benefited.
Vander Keessel, whose Select Theses is one of the most modemworks of authority on the Roman-Dutch Law, and who wrote inorder, as it were, to bring Grotius’ Introduction up to date, passesthe passage I have cited without comment, and adds (Thesis474),“ the opinion entertained by Yoet and Groenewegen,
“ namely, that children who have attained the age of puberty may“ be made civilly liable on their own contracts, and be used after“ they have attained majority or after the death of the parents, is“ wholly opposed to the analogy.of our law."
Van Leeuwen (Commentaries, bk. 4, chap.-2, § 3, Kotze’s Trans.,p. 13) states “ that minors cannot without the knowledge and.
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“ assistance of their guardians bind themselves; with this1902.
distinction, that, by accepting anything .from another they may“ indeed acquire something but do not bind themselves in favour March l.' ‘ of another further than thej have been actually benefited we.vdt, .J.'■ thereby.” Dealing later with the remedy of restitution, heparticularizes the principal instances in which it is granted anddays:“Where the obligation has been made by or on behalf of a
“ njinor in the presence of the guardian or otherwise effectually" entered into, he may ask to be relieved against it, for a minor“ ought not to be prejudiced by the act of his guardian; otherwise,
“ if the obligation has been effected by a minor in person, it will“ be void of itself, and no restitution is necessary ” (p. 345).
Decker, who published his edition of Van Leeuwen’s Commen-taries in L780, adds in a note that by way of greater security relief:bv restitution is generally asked at the present day againstcontracts and transactions which would otherwise be ipso jureconsidered null and void, and he refers to Voet (4, 4, 13), wherethat, author assumes that restitution is competent (as no doubtit is) against a donation. See also T'oef, 4, 4, IS.
Burge (3 Col. and For. Laws, 178) says that the obligation of»n infant is illegal. Dealing with the subject of sales, therequisites of which as to capacity are also necessary for donation,he says:“ There must exist also the power of alienating on the
“ part of such owners; a delivery by a minor or person under“ interdict, without the authority of the guardian or the curator,
'■ is ineffectual..1'
»
These authorities, I think, show that the donation by a minor,unassisted by a guardian, is null and void. It was, however,argued that in this instance the first plaintiff was in fact assistedby guardian, that is to say, by her mother Francina, and VanderLinden (Juta's Trans., p. 29) was cited to prove that the motherbecomes on the father’s death the guardian of the children byvirtue of the patria potestas. But Vander Linden goes on to saythat' this power of the parents consists in a general supervisionof the maintenance and education of their children and in the ad-ministration of their property. Such guardianship is no longerrecognized by our Courts. Chapter 40 of the Civil ProcedureCode requires every person who shall claim a right to havecharge of property in trust for a minor to apply to the Court for acertificate of curatorship. The Court may also, unless a guardianhave been appointed by the father, appoint such person or anyrelative or friend to be guardian of the person of the minor.
Francina did not, besides, profess to act in the capacity of first,plaintiff's guardian or to assist her in the transaction. She did not’22-
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190’.obtain the leave of the Court to donate the minor’s property, and
February 10 this is one of the formalities necessary to a regular alienation of*a war^’spropertybythe guardian. See in re Hider,ex parte
—— ‘Corbet, 38. C. C.46;Perera v. Perera, 1 N. L. B. 140;3 Burge,
\w:dt. J.j yoet4' 4, 18:where a decree of Court is said to benecessary
even forthe saleofthe infant’s real property. Thedonation,
therefore, cannot be said to have been an alienation by guardianin due form.*
For these reasons I come to the conclusion that the plaintiff’sdonation was a nullity, and could not be ratified by her own andher husband’s acquiescence. The defendant endeavoured, by hisevidence recorded in case No. 18.124, to make out that Lorenzo hadpurchased the land in 1887 with the defendant’s money and held itunder a secret trust for him so as to keep it beyond the reach ofhis creditors, hut this was not made the subject of any issue andwas not tried in the present case.
Upon the opinion I have expressed, the first plaintiff would beentitled to a declaration ot her right to a fourth of the land inquestion but for a defect in her original title, due to the fact that theestate of her father Lorenzo has not been .regularly administered.That estate w'as admittedly over Rs. 1,000 in value, and fallswithin the rule enacted in section 547 of the Civil ProcedureCode. It was argued that the defendant, himself claiming underthe first plaintiff, could not dispute her title, nor did he disputeit in the Court below, though the objection was taken before us.Section 545 of the Code, however, renders it obligatory on theCourt, whenever it appears that a right is claimed to any portionof such an estate by intestate succession, to refuse to entertainsuch claim until the appointment of a proper legal representative(.1/. Fernando v. .4. Fernando. 4 N. L. R. 201; 1' Browne. 295).
. The appeal will be allowed and the case sent back to theDistrict Court, in order that plaintiffs may take steps for theappointment of an administrator to Lorenzo’s estate, after whichthe first plaintiff will be given a declaration of titlfe with -suchdamages as the parties may agree upon or, in default of agreement,the plaintiffs may prove.
The defendant will pay the plaintiffs’ costs in both Courts.
Bonser, C.J..— –
I agree with the judgment which has been read by mylearned brothel'.I think the authorities which he has cited
tend to support the proposition that a donation by a minor isipuo jure void, and not merely voidable; and. in addition to theauthorities cited by him, I wish to add the authority of Sandi or
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Alienations, chap. L i 3, para. 21, where he says : “ And“ indeed so strongly is the donation of the property of a pupil or“ minor forbidden, that it cannot be made even under an“ order of Court. For such consideration can be validly alienated“ for good consideration only, and there can be no consideration“in a donation. ”
1902.
February 19and 90, andMarch 1.
Bonser.C.J